Talukdar,J. - (1.) THE widow and the children and the mother of he deceased are in appeal against an order of 16.3.2004 passed by the learned Motor Accident Claim Tribunal, Krishnagar (First Court), in connection with M. A. C. Case No. 26 of 1997. Assessing the income of the deceased (husband of the Appellant No. 1), the learned Tribunal concluded that the Claimants would be entitled to a sum of Rs.1,60,000/- in their respective proportionate share without, however, awarding any regular interest barring application of the default clause. This is seen them in appeal on the following grounds : Firstly, that the assessment of the income was even less than that what is contemplated under the notional income basis; secondly, application of the rule of 1/3rd deduction would not be appropriate in view of the fact that the deceased had three minor children and his elderly mother including his widow. Reference was made to the decision of National Insurance Company Limited v. Khimlibai and Others reported in (2010)2 WBLR (SC) 42 on this score and thirdly, the assessment of income was made on an erroneous premises losing sight of the evidence of P.Ws. 2 and 3 who were the Secretary and Member of the Betai Rickshaw O Van Chalak Union, under which the deceased was plying cycle-rickshaw being an erstwhile member as both of whom has deposed with regard to the income as of Rs.100/- to Rs.150/- per day basis.
(2.) ON the basis of the same Shri Banerjee, who has placed the judgment and order under appeal along with the evidence, has submitted that the order is required to be interfered with since not only the amount of Rs.1,60,000/- which has been awarded by the learned Tribunal as compensation was absolutely inadequate, but the fact remains it was arrived, at on the basis of improper assessment of the evidence and incorrect calculation. Shri Banerjee has further submitted that no order of interest was passed on the sum which was awarded. He, accordingly, has prayed for modification of the same in the line of the position that he has placed before us from the judgment and order under appeal. Shri Singh for the Insurance Company has made elaborate submissions contradicting Shri Banerjee. Shri Singh was of the view, it should not be forgotten that the accident took place on 31.12.1996. Shri Singh submitted, keeping in mind the price index prevalent in the year 1996, the sum of Rs.40/-which was arrived by the learned Tribunal as it did not consider it fit to accept the evidence of either P.Ws. 1 and 2 or the widow, P.W.1 with regard to the income of the deceased was proper. Shri Singh placed heavy reliance on the fact that the assessment by the learned Tribunal was made in relation to the actual period when the accident took place and what was the income at the relevant time which cannot be equated with the current market rate and he was further of the view that the calculation made by the learned Tribunal of Rs.1,60,000/- as compensation taking into account the income of the deceased as forty rupees per day need not be reconsidered. Shri Singh further submitted with regard to the point raised by Shri Banerjee in respect of non-applicability of the question of 1/3rd deduction. He has distinguished the decision in the case of National Insurance Co. Ltd. (supra) and submitted that in that case number of dependants were much higher than in the present case. Shri Singh submitted that this judgment would not be applicable in the present case for the fact that the Supreme Court was dealing with a case where it had taken note of the fact that even if the appellant therein had worked for six months, he could earn the amount in question considering the dependency factor of his family and as such, he distinguished the said judgment. Shri Singh further submitted, as the evidence of P.W.2, who claimed himself to be the Secretary of Betai Rickshaw O Van Chalak Union, also has admitted that he is a priest by profession, the bona fide of the evidence was at great doubt. He refers to the certificate issued by him (Ext.4) and submits that he has not given the exact earning of the deceased. As such, the learned Tribunal has rightly concluded in the direction as indicated in the appeal.
(3.) AFTER we have heard the submissions of both Shri Banerjee for the Appellants and Shri Singh, for the Insurance Company, we find that before us there is evidence of widow, P.W.1, the Secretary of the said Union to which the deceased belonged, P.W.2 and another member of the said Union, P.W.3. From the evidence of P.W.1 it appears that her late husband was a Rickshaw-puller and he used to earn Rs.100/- to Rs.150/- per day. In her cross-examination also she could not be shaken from her previous position. The claim petition filed by her also indicated that the deceased was a Rickshaw-puller and used to earn Rs.3,000/- per month and she made a claim of Rs.2,50,000/- as amended. P.W.2, the Secretary of the Union, whose evidence has come under cloud in the light of the submissions of Shri Singh for the Insurance Company, appears to be Secretary of Betai Rickshaw O Van Chalak Union. He deposed that the deceased was a member of the said Union. He was an eye-witness and was also author of the F.I.R. (Ext.1). His evidence shows that at the relevant time Van-rickshaw Pullers used to earn Rs.100/- per day. He had issued a certificate which was referred to in details by Shri Banerjee (Ext.4) to show the membership of the deceased and the factum of his plying rickshaw at the relevant time. In his cross- examination as pointed out by Shri Singh, he had admitted that he is a priest by profession and could not show document with regard to the details of the Union. P.W.3, a member of the said Union, justified that the deceased was a Van-rickshaw Puller and used to earn Rs.100/- to Rs.150/- per day and that he was also a member of the said Union and in his cross-examination he could not be distracted from his previous deposition with regard to either of the facts that the deceased was a Van-Rickshaw Puller or he used to earn Rs.100/- to Rs.150/- per day. Now we would for a moment shift our attention to the finding of the learned Tribunal with regard to the Income vis-a-vis the status of the deceased. The learned Tribunal calculated, "taking into consideration of the status of the victim, it can reasonably be presumed that the daily income of a rickshaw-puller may not be less than Rs.40/- at the relevant time at the local area of the P.O. So on calculation of the same the monthly income of the deceased comes to Rs.1,200/- and the annual income comes to Rs.14,400/-. 1/3rd of the said amount is required to be deducted as an amount the victim would have incurred towards maintaining himself had he been alive." Thereafter the learned Tribunal has disbursed the awarded amount at a ratio on the basis of individual entitlement of the respective claims.;